The darkness of secrecy

Future historians should perhaps turn to court rulings, rather than parliamentary debates or political speeches, to discover how government worked in the opening years of the 21st century. At their best, they expose the shallowness of public promises and the compromises made necessary by power.

Yesterday's high court ruling on the case of Binyam Mohamed does this in spades, venturing into one of the nastier and illegal corners of George Bush's self-defeating war on terror. It reveals that the foreign secretary faced something approaching international blackmail last year, when the United States threatened to cut off intelligence cooperation if Britain published secret information that showed a terror suspect had been tortured. It also finds that David Miliband's unhappy response, to block publication using a public interest immunity certificate, was, given the American threats, and the implications for national security, legal.

"In the darkness of secrecy, sinister interest and evil in every shape have full swing," wrote Jeremy Bentham. His words were quoted with approval by Lord Scott in a famous ruling involving a Conservative government's attempt to hide the truth about its dealings with Iraq. They were quoted again in yesterday's ruling, which showed that Mr Mohamed, an Ethiopian once resident in this country, had been abused by a system that hides from the light. The foreign secretary has found himself defending this secrecy, even though the Mohamed case (like an unrelated one relating to the torture of suspects in Pakistan, reported yesterday) shows how appalling its consequences can be.

Mr Mohamed was captured under a covert system of extrajudicial extraordinary rendition, tortured, detained in Guantánamo Bay (where he remains), and faced possible trial before a military tribunal (and perhaps a death sentence). All along he has fought to gain access to evidence about his case that reveals the extent of his inhumane treatment. Some of this information reached Britain, which is why his lawyers, and parts of the media, including the Guardian, have been fighting in the British courts to secure its publication.

Yesterday the high court went out of its way to explain that this request was "plainly right", given Mr Mohamed's suffering. The judges argued that it was in their view "difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported, as to how a detainee was treated by them". These are not the words of judges who think the government has handled the matter well. Nonetheless they could not overturn the foreign secretary's decision, that release would harm national security.

The consequence is to hide from scrutiny illegal acts of the previous American administration – acts, including torture, that this government says are never, in any circumstances, acceptable. The government argues that the proper place for investigation is the secret Intelligence and Security Committee – but this inadequate body looked the other way when it examined the Mohamed case in 2007. The ruling reveals the extraordinary fact that it did not even occur to its members that America might ever torture suspects. Its annual reports, the latest now overdue, are censored. Its current and previous chairs were both Foreign Office ministers – chosen to monitor decisions for which they were once responsible.

The government says that it has a duty, whatever the circumstances, to honour the confidential terms on which it receives intelligence from abroad. This contradicts its vigorous public stance against torture. It has looked the other way, when it needed to. A covert system of torture has been the source of great evils. Private scrutiny has failed. Publicity is the necessary cure.